Thomas Kraemer is Senior Counsel at Kakar Advocates in Kabul, Afghanistan, and a graduate of the University of Pittsburgh School of Law. He is a Special Correspondent for JURIST currently based in Istanbul, Türkiye.
Afghanistan’s Supreme Leader, Hibatullah Akhundzada, recently issued an order directing the manner of processing of “principal documents”. The order does not actually define principal documents, but it may be inferred that new legislation falls within the ambit of the decree.
The first step in the processing of principal documents is for the concerned ministry or other government office to draft the desired legislation. This first step is a departure from the practice under the former government. Previously, the Ministry of Justice had a department dedicated to the drafting of legislation, and the relevant ministry would prepare a short summary of the desired law or regulation, and the MoJ would take the lead in creating the document.
Under the new decree, the MoJ gets involved after the principal document has been prepared by the line ministry. The legislation is forwarded to the MoJ for review, primarily, according to the new instruction, for compliance with Islamic law.
Following review by the MoJ, the legislation goes to a special committee for further review. The decree is silent on the membership of the committee (which has yet to be formed), or on the intended focus of its review. Based on the particular emphasis of the interim government to date, it is likely that the committee will be comprised, at least in part, by persons versed in Islamic law.
After the committee has finalized the legislation, it is sent to the Supreme Leader for his endorsement. Upon endorsement, the legislation is to be published in the Official Gazette.
The decree is notable for outlining, for the first time, how the interim government envisions the law-making process. Since the fall of the Republic, there has been no parliament, and the interim government appears not to intend to restore the legislative branch (when the Taliban were in power previously, the government also operated without a legislature). Thus, the process is firmly in the hands of the executive branch. While the new procedure is not ideal (for example, there is no consultation with the private sector or opportunity for public comment), the fact that there is a procedure is an improvement, and the publication of principal documents in the Official Gazette means that the laws when enacted will be accessible.
In other developments, a circular was issued last week by the Supreme Court of Afghanistan directing lower courts on the enforcement of judicial orders issued by the courts under the previous government. Prior to this new circular, lower courts had been ordered not to enforce judgments from the old regime.
The new directive instructs the lower courts that where an order has been issued by a court under the former government, but the order has not yet been enforced, the court should conduct a review of the order and determine whether it is compliant with Islamic law. If it is determined that the order fails, in whole or in part, to be consistent with Islamic principles, then the order may not be enforced. Otherwise, the old orders may be considered valid under the interim government and are enforceable.